Dr Ben Christman: 21 years of Aarhus – how long the wait for affordable access to environmental justice in Scotland?
Dr Ben Christman looks at the Scottish civil justice system’s failures in enabling access to environmental justice.
Now more than ever, we appreciate that the health of our environment is critical to the enjoyment of basic human rights.
Greta Thunberg’s warning that “our house is on fire” is a sharp reminder that civilised society is predicated on the existence of a stable climate.
Air pollution threatens the right to life, as attested to by the ~2,500 lives which it prematurely ends in Scotland each year. As is often the case with environmental degradation, those with the least responsibility for causing the problem shoulder the greatest burden. Children face disproportionately negative health effects, not least because they are closest to the exhaust pipes.
Without going on, the Aarhus Convention celebrates its 21st birthday today and is a legal expression of the human right to a clean and healthy environment.
To oversimplify a 25-page text, the Convention envisages a participatory democracy where citizens actively engage in environmental decision-making and legal enforcement. It has three limbs - giving citizens rights to access environmental information, to participate in decision-making and to access justice where laws are broken.
Effectively, Aarhus allows people to find out about environmental problems, shape the laws and policies to tackle them, and enforce national environmental laws through the courts.
Or it should. In Scotland there is a serious misalignment between the Scottish civil justice system and the Convention when it comes to access to environmental justice.
Article 9 requires that NGOs and members of the public must be able to challenge situations where their Convention rights are infringed or national environmental laws are broken. The Convention recognises that rights are meaningless where people cannot afford to enforce them, so to make the right real, access to environmental justice must be ‘not prohibitively expensive’.
Environmental litigation in Scotland is largely carried out via judicial review. Expenses follow success – the loser pays their opponent’s legal expenses. A litigant may also have to pay the expenses of another party, for example where an interested developer ‘intervenes’ in a case.
Litigants can apply for a ‘protective expenses order’ to cap their liability to the other side if they lose; but the statutory regime for PEOs is highly problematic and few have been granted in practice.
Additionally, the legal aid rules effectively make legal aid unavailable in environmental cases. Even where someone manages to get a PEO, they still have to figure out how to pay their own legal team.
The costs of environmental litigation can run into six figures. The John Muir Trust’s unsuccessful challenge to a windfarm development led to a £539,000 bill to the Scottish government and SSE in 2017.
The Convention’s two decision-making bodies have both assessed the Scottish legal system as being non-compliant due to the costs of accessing justice. The ‘Meeting of the Parties’ in 2014 and 2017, and the Compliance Committee in 2015, 2017 and 2019 reached similar conclusions.
Yet despite five authoritative findings of non-compliance, the Scottish government maintains a position of stubborn denial.
2016 and 2017 consultation documents declared Scotland’s ‘ongoing compliance’ and trumpeted the existence of ‘statutory frameworks in place to ensure Scotland is fully compliant with all aspects of the Aarhus Convention’.
Whereas the Compliance Committee’s decisions are founded upon the detailed reasoning you would expect from the senior legal practitioners and academics who comprise its membership; the Scottish government’s assertions are reason-free.
As Aarhus hits adulthood then, the Scottish government is struggling to reach any semblance of maturity on the subject. If any further legal developments are to occur, they are likely to be provoked by Holyrood where the Equalities and Human Rights Committee has recently re-opened examination of a public petition on compliance.
It is hoped that the Committee gives this area the forensic scrutiny it deserves. Access to environmental justice is not currently a basic human right enjoyed by all in Scotland; instead it is a luxury commodity available only to a privileged few. Tom Bingham wrote of justice in England being “open to all, like the Ritz Hotel”. When it comes to the environment in Scotland, justice is like the Balmoral.
The UK ratified the Convention in 2005. Justice is a devolved matter. That passage of time and availability of the Parliamentary tools to fix the problem make the status quo unsustainable. Recognition of non-compliance and a deep examination of the structural problems of the civil justice system are needed to meet the demands of international law.
Dr Ben Christman is a trainee solicitor at the Legal Services Agency and a member of the Law Society of Scotland’s Access to Justice Committee. He is speaking about Aarhus in Scotland at the ‘21 Today: The Aarhus Convention Coming of Age?’ Conference at King’s College London today. All views are his own.